11 Pa. 460 | Pa. | 1849
The opinion of this court was delivered by
The same strictness of proof is not indispensable to make the guarantee of a note or bill effective, as is necessary to sustain an action on the paper itself, and, therefore, the guarantor of a negotiable instrument, who is not at the same time a party to it, according to the custom of merchants, is not discharged from his liability by the neglect of the holder to give him notice of the default of the parties primarily liable, unless he can show by express evidence, or from fair inference, that he has actually sustained loss by the omission: Worrington v. Furber, 8 East, 242; Van Wart v. Wosky, 3 B. & C. 439; Gibbs v. Cannon, 9 S. & R. 198, If the party who ought first to be called on was solvent at the time the note or bill matured, and became insolvent afterwards, before notice, an inference of actual damage to the guarantor will be drawn from the want of notice, sufficient in itself to defeat the holder’s action. This inference will obtain, until rebutted by proof that, had notice been given, payment could not have been obtained from the original parties: Phillips v. Astling, 2 Taunt. 206; Swineyard v. Bowes, 5 M. & S. 62; Chitty on Bills, 10, Am. Ed. 441 — 2. But if these parties were bankrupt or wholly insolvent before the bill or note fell due, the inference -will be, that no injury arose from the want of notice, though this inference may also be rebutted by actual proof: cases above cited; Holbrow v. Wilkin, 1 B. & C. 10; 2 D. & Ryland, 59. Our own case of Leech v. Hill, 4 W. 448, adopts this doctrine, and shows
There is nothing in the objection made to Short as a witness. He was not called to prove equality of liability between himself and Taylor. His testimony went directly to establish a liability on his part to respond to Taylor for whatever might be recovered, against the latter, together with the costs of the action. His
Judgment reversed, and a venire de novo awarded.